Marks v Perham [2018] NSWLEC 1390

Marks v Perham [2018] NSWLEC 1390

The Court could not make orders on the alleged sewer pipe damage because, even if roots had damaged the pipe, the applicants had not shown which tree or trees the roots belonged to and the statutory test had to be met separately for each tree. However, all three trees had poor form and reduced amenity, two had lost more than half their foliage, dead branches had fallen, larger branches were likely to fall in the near future, and the third tree would be exposed to greater wind loads after removal of the other two. After considering s 12, the Court was satisfied all three trees might cause damage in the near future and that removal was appropriate.

Jurisdiction
Australia
Judgment Date
20 July 2018
Procedural Posture
Class 2 Proceedings Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Extemporaneous Decision Revised and Edited Prior to Publication; Consent Orders After Onsite Hearing
Outcome
Consent orders made requiring the respondent to remove the three Syzygium paniculatum trees and deal with their stumps; exhibits returned.
Legal Topics
['damage to Sewer Pipe by Tree Roots' 'risk of Damage or Injury From Trees' 'consent Orders' 'tree Removal']
['trees Disputes Between Neighbours' 'land and Environment Court Jurisdiction'] ['damage to Sewer Pipe by Tree Roots' 'risk of Damage or Injury From Trees' 'consent Orders' 'tree Removal']

Case Brief

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Procedural Posture

Class 2 Proceedings Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Extemporaneous Decision Revised and Edited Prior to Publication; Consent Orders After Onsite Hearing

Legal Issues

  1. 1 ['Whether the applicants had shown that roots from each of the three trees damaged their sewer pipe so as to justify orders for that tree' 'Whether the three Syzygium paniculatum trees were likely to cause damage or injury in the near future' 'Whether removal of the trees was appropriate after considering the matters in s 12 of the Trees (Disputes Between Neighbours) Act 2006 (NSW)' "Whether the Court could make the parties' proposed consent orders"]

Ratio Decidendi

The Court could not make orders on the alleged sewer pipe damage because, even if roots had damaged the pipe, the applicants had not shown which tree or trees the roots belonged to and the statutory test had to be met separately for each tree. However, all three trees had poor form and reduced amenity, two had lost more than half their foliage, dead branches had fallen, larger branches were likely to fall in the near future, and the third tree would be exposed to greater wind loads after removal of the other two. After considering s 12, the Court was satisfied all three trees might cause damage in the near future and that removal was appropriate.

Court Disposition

Consent orders made requiring the respondent to remove the three Syzygium paniculatum trees and deal with their stumps; exhibits returned.

Orders

  • ['Within 60 days of the date of these orders, the respondent is to engage a suitably qualified and experienced arborist (minimum AQF level 3 in Arboriculture), with all appropriate insurances, to remove the three (3) Syzygium paniculatum trees which are the subject of these proceedings, with their stumps to be the...